European Papers (Jun 2024)
The If and the How: Losing the EU Citizenship, but with Due Regard to the Due Process of (EU) Law
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 131-144 | European Forum Insight of 18 June 2024 | (Table of Contents) I. The citizenship of the Union: an evolving, slippery ground. - II. The case-law concerning the loss of the EU citizenship. - ii.1. Case-law overview: characterization and main features. - ii.2. Legal principles of EU citizenship law established by the Court. - III. The proportionality test and its effectiveness. - iii.1. Individual examination. - iii.2. Effective possibility to recover the nationality ex tunc. - IV. Individual examination and due process rights: information and reasonable time. - V. Concluding Remarks | (Abstract) The judgment in Stadt Duisburg, concerning the loss of German (and, thus, EU) citizenship in the context of naturalization proceedings, adds a new chapter to the “judicial saga” of loss of a Member State’s citizenship and compatibility of its national measures with EU law. This Insight focuses on such a case-law of the Court of Justice (“ECJ” or “the Court”), which reflects the compromise between the “untouchable” State sovereign competence in nationality matters and the gradual consolidation of a “procedural armour” assisting the loss of the EU citizenship and the rights attached thereto. Building on this assumption, the Insight retraces and examines the main principles of EU citizenship law elaborated by the Court via its case-law, inaugurated with its 2010 leading case Rottmann, and complemented with the latest additions of the 2024 judgment in Stadt Duisburg. The main idea emerging from this jurisprudence is that, essentially, the competence to establish criteria for the loss of nationality is, and remains, firmly in the Member States’ hands. Its exercise, though, is increasingly made contingent on the respect of basic, legal principles of EU procedural law, i.e., proportionality, effectiveness and due process of law. In other words, the ECJ does not intervene on the substantial side of the Member States’ competence (the “if”), but rather on the procedural one (the “how”), thereby influencing its concrete exercise.
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